Feinstein: Supremes are not umpires

Sen. Dianne Feinstein’s opening statement in the Supreme Court nomination of Judge Sonia Sotomayor indicated she thinks much of what is said and promised by nominees in Senate confirmation hearings is a bunch of bunk.

Feinstein is an easy yes vote on Sotomayor, but she used her statement to take a swipe at Chief Justice John Roberts, who in his confirmation described judges as umpires whose job is to call balls and strikes, not play the game.

Feinstein’s words could be read as part justification for her partisan votes on Roberts and Alito and part concerted strategy by Democrats to swat down GOP complaints of judicial activism by liberal judges.

Feinstein said the conservative justices — once on the court — laid waste to what former Judiciary Committee once called “super-duper precedents” especially related to abortion.

Selected quotes of her remarks as delivered:

“Your nomination I view with a great sense of personal pride. You are indeed a very special woman. You have overcome adversity and disadvantages. You have grown in strength and determination and you have achieved respect and admiration for what has been a brilliant legal and judicial career.

“If confirmed, you will join the Supreme Court with more federal judicial experience than any Justice in the past 100 years. And you bring with you 29 and a half years of varied legal experience to the court. By this standard you are well-qualified.

…What is unique about this broad experience is that you have seen the law truly from all sides…You were a prosecutor who tried murder, robbery and child pornography cases. So you know firsthand the impact of crime on a major metropolis and you have administered justice in the close and personal forum of a trial court.

You also possess a wealth of knowledge in the complicated arena of business law with its contract disputes, patent and copyright issues, and antitrust questions.

And as an associate and partner at a private law firm, you’ve tried complex civil cases in the areas of real estate, banking and contracts law, as well as intellectual property, which I’m told was a specialty of yours.”

Feinstein said in her 16-plus years on the Judicial Committee, she has “found it increasingly difficult to know from answers to questions from this dais how a nominee will actually act as a Supreme Court justice, because answers here are often indirect and are increasingly couched in euphemistic phrases.

“For example, nominees have often responded to our specific questions with phrases like: “I have an open mind,” or yes, that is precedent “entitled to respect,” or “I have no quarrel with that.”

…”Several past nominees have been asked about the Casey decision, where the Court held that the government cannot restrict access to abortions that are medically necessary to preserve a woman’s health.

Some nominees responded by assuring that Roe and Casey were precedents of the Court entitled to great respect. And in one of the hearings, through questioning by Senator Specter, this line of cases was acknowledged to have created a “super-precedent.”

But once on the Court, the same nominees voted to overturn the key holding in Casey — that laws restricting a woman’s medical care must contain an exception to protect her health.

Their decision did not comport with the answers they gave here, and it disregarded stare decisis and the precedents established in Roe, in Ashcroft, in Casey, in Thornburgh, in Carhart I, and in Ayotte.

“Super precedent” went out the window and women lost a fundamental constitutional protection that had existed for 36 years.

Also, it showed me that Supreme Court justices are much more than umpires calling balls and strikes and that the word activist often is used only to describe opinions of one side.

As a matter of fact, in just two years, these same nominees have either disregarded or overturned precedent in at least eight other cases:

“A case overturning a prior ruling on regulation of issue ads relating to political campaigns, (FEC v. Wisconsin Right to Life)

“And a case disregarding prior law and creating a new standard that limits when cities can replace civil service exams that they believe may have discriminated against a group of workers, (Ricci v. DeStefano).

“So I do not believe that Supreme Court justices are merely umpires calling balls and strikes. Rather I believe that they make the decisions of individuals who bring to the court their own experiences and philosophies.”